From October 2012 health and safety duty holders who the Health and Safety Executive (HSE) believe have committed a material breach of health and safety legislation have been required to settle invoices for advice given by the HSE pursuant to the Fees for Intervention (FFI) scheme. The HSE estimates that the FFI scheme could potentially generate £37 million per annum by shifting the cost of Health and Safety Regulation from the public purse to the businesses and organisations that breach health and safety laws.
Whether that provisional estimate proves to be accurate remains to be seen. It is early days. Between October to November 2012, 1419 invoices were issued by the HSE totalling £727,644.81. Of these around 10% were for more than £1,000, 70% for less than £500 and 20% for between £500 and £1000.
In subsequent criminal proceedings for a breach of health and safety legislation, there is nothing preventing the HSE from seeking to use the payment of the invoice as an admission of guilt. Such an approach might be unfair where a commercial decision is made to make payment rather than contesting the FFI invoice submitted. In addition, FFI will inevitably arise early on in any potential case and well before a potential defendant realises that they may actually have a defence or are likely to be prosecuted by the HSE.
Therefore, if a case could potentially be contested there is the possibility of unfairness where an early FFI invoice has been settled. Notification of an apparent material breach is in any event based solely on the opinion of the individual HSE inspector concerned. It is therefore subjective. The notice of breach must include the following information:
- The law that the inspector's opinion relates to;
- The reason(s) for the opinion;
- Notification that a fee is payable; and
- Confirmation of which contraventions are material breaches.
No comfort from the HSE
Peter McNaught, the current HSE chief legal adviser, has gone on record to say that the HSE cannot give assurances regarding how evidence about FFI will be used in any subsequent case. At the same time the HSE says it is not "actively looking" at using paid FFI invoices in this way.
According to Mr McNaught the situation regarding FFI invoices is similar to where an Enforcement Notice is issued which is then complied with and not appealed. However, the dilemma for the duty holder is that by paying the invoice, they may be seen to be accepting the material breach. That perceived acceptance may be used as an admission in any subsequent criminal prosecution.
Whether the HSE will decide to use an FFI payment in evidence in a subsequent criminal prosecution will no doubt be dependant on the facts of each particular case. What is clear is that the risks of the HSE using an FFI payment in this way are very real and the potential consequence of making a payment needs to be considered at the time of the HSE attendance and again when and if an invoice is sent through.